The European Union and Penal Law

• DOI: http://doi.org/10.1111/1468-0386.00044
• Date: 01 March 1998
• Author: Mireille Delmas‐Marty
• Published date: 01 March 1998

The European Union and Penal Law

Mireille Delmas-Marty*

Abstract:Technically-speaking, penal law remains outside the competence of the

European Communities and Union. However, mirroring other legal developments

within Europe, a combination of higher Community ‘principles’ such as proportion-

ality, non-discrimination, free competition and loyal co-operation, together with

secondary Community law, has on the one hand, led to an unforeseen process of the

harmonisation of national penal systems; with national norms either being set aside by

Community law, or given extended scope in the pursuance of EC/EU goals. On the

other hand, certain European interests – most notably, the need to safeguard the

European Union budget – have proven strong enough to prompt the evolution of a

nascent penal law of the EU; the most noteworthy development here being the drawing

up of an independent European ‘corpus juris’ covering penal policy and procedure in

the area of EU budget protection.

I Introduction

At f‌irst sight, the European Union and Penal Law are polar opposites. For the right to

punish, a monopoly of the State is undoubtedly the most prominent mark of national

sovereignty; however, the European Union’s supranational legal structure would seem

to rule out penal law. While the founding texts of the Community and Union

instituted a ‘Community legal order,’ this did not include penal law provisions. As the

Commission noted in 1974, penal law ‘is a subject which does not as such enter the

Community’s sphere of competence, but remains within the province of each Member

State.’

1

Similarly, the ECJ held in 1977

2

that in the absence of applicable Community

sanctions, Member States may choose the penalties they see f‌it to correct non-

observation of Community regulations by private persons. The Court has since often

re-aff‌irmed this principle, though gradually altering it, f‌inding in 1989 that States

before which violations of Community law are brought should provide sanctions

which are ‘effective, proportionate and dissuasive’

3

in nature, but should likewise not

go so far as to impose penal sanctions.

European Law Journal, Vol. 4, No. 1, March 1998, pp. 87–115

© Blackwell Publishers Ltd. 1998, 108 Cowley Road, Oxford OX4 1JF, UK

and 350 Main Street, Malden, MA 02148, USA

* Professor at the University Panthéon-Sorbonne (Paris 1), Member of the Institut universitaire de France.

Translated by Iain L. Fraser. Course given at the 8th session of the Academy of European Law, June

1997. Given the date of this course, the amendments resulting from the Amsterdam Treaty are mentioned

though not analysed systematically.

1

8th report of Activities.

2

Case 50/76, Amsterdam Bulb, [1977] ECR 137.

3

Case 68/88, Adde, [1989] ECR 2965.

To be sure, the Maastricht Treaty raises questions of penal law, but this in Title VI –

the so-called ‘third pillar,’ which remains outside the ‘Community’ pillar – and thus

has little immediate effect upon the ‘Community legal order.’ Rather, such issues are

conf‌ined in principle to co-operation of an intergovernmental nature (judicial and

police), without having direct implications for national sovereignty and therefore for

the content of national criminal law. Likewise, the Amsterdam Treaty, in its

provisional version of July 1997, ‘communitarises’ questions relating to the control of

aliens (the new Title III A of the EC Treaty) but this is not a matter of penal law

strictu sensu. In this regard, the Treaty only envisages ‘closer co-operation between

police forces, customs authorities and other authorities within the Member States.’

4

Even if the ECJ’s powers should be increased (Article K7) and Europol’s role

augmented (Article K2, para 2), the internationalisation of penal law would still seem

to be limited to a process of co-operation.

In reality, however, Community inf‌luence has become far stronger than a f‌irst

glance at the Treaties indicates.

5

So much so that the present EU is a prime example of

the two major ways in which penal law may be internationalised: f‌irst, through the

harmonisation of national systems (through a partial approximation of laws): and

secondly, by virtue of their unif‌ication in favour of a single penal system. Here, a

twofold phenomenon is discernible. On the one hand, the penal law of States located

in the EU has been ever more visibly inf‌luenced by Community law, be it treaties or

derived law (regulations and directives). This inf‌luence is further ref‌lected in the

progressive harmonisation of national systems, which is sometimes direct (through

harmonisation directives), and sometimes indirect (on the basis of the treaties under

derived law). On the other hand, however, the notion of a penal law of the EU is also

developing – though only in the admittedly limited area of budget protection

6

– and

has seen the establishment of a corpus juris of 35 articles unifying penal law and

procedure designed to safeguard the EUbudget.

7

II Penal Law in the EU: Ongoing Harmonisation

The growing inf‌luence of Community law on domestic penal law within the EU is the

result of a complex legal process. Complexity is due to the fact that this process was

not directly laid down in the founding texts, and instead results from the combination

of three general principles of Community law.

First, the principle of the direct effect of Community law, aff‌irmed in by the ECJ in

Van Gend

8

which promotes national judges to judges of Community law. First

European Law Journal Volume 4

88 © Blackwell Publishers Ltd. 1998

4

Article K.1, Title VI EU Treaty. For a more detailed study of the effects of the Amsterdam Treaty on the

whole of penal law and criminal policy, refer to Journée de l’ARPE, 5 December 1997, forthcoming in

Revue de Science Universelles, 1998, n°2.

5

See especially, amongst the f‌irst studies on the subject, Biancarelli and Maidani, ‘L’incidence du droit

communautaire sur le droit pénal des Etats membres’, RSC 1984.225 and 445; Gassin, ‘Incrimination

pénale et marché commun’, Mélanges Jauffret, 1984, 321 et seq.

6

The cost of this criminality is off‌icially assessed at 1.4% of the budget (European Parliament Hearing, 16

April 1997), but some criminological research mentions a f‌igure of 10% (Vervaele, ‘La Communauté

européenne face à la fraude communautaire. Vers un espace pénal communautaire,’ RSC 1990.29; La

fraude communautaire et le droit pénal européenne des affaires, PUF, 1994).

7

Corpus juris portant dispositions pénales pour la protection des intérêts f‌inanciers de l’Union européenne,

dir. M. Delmas-Marty, (Economica1997).

8

Case 9/70, Grad, [1970] ECR 825; Case 33/70, SACE [1970] ECR 1213. Annotated by Joël Rideau in

‘Droit institutionel de l’Union et des Communautés européennes,’ LGDJ, 1996, 2nd ed. 747.